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Alternative Inventor? Biden admin opens door to non-human, AI patent holders

The U.S. Patent and Trademark Office is asking for comment on whether AI systems should somehow be given credit for patentable inventions, instead of just humans.

The U.S. Patent and Trademark Office has launched a process that could determine whether artificial intelligence systems can get full or partial credit as inventors of new ideas that win patent protection.

USPTO on Monday announced it would hold a “listening session” on this question in early May, and is accepting public comment on whether AI has now become so advanced that it should somehow be credited as an inventor when it produces an idea that has yet to be conceived by mankind.

The question of whether and how to credit AI for new inventions is one that has emerged over the last few years. In 2019, USPTO asked for public comment on whether AI is now so advanced that federal laws need to be rewritten in order to protect inventions from “entities other than natural persons.”


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In 2020, USPTO denied a request to recognize an AI machine as an inventor. In that decision, USPTO said that current patent laws only allow the status of “inventorship” to be given to a natural person.

That decision was upheld in two court rulings – the last one was a federal Appeals Court decision that said federal law defines an inventor as an “individual,” which Supreme Court precedent says means a human being. But now, USPTO says it might be time to reconsider giving credit to AI and emerging technologies (ET) when they make innovative breakthroughs.

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“[T]here is a growing consensus that AI is playing a greater role in the innovation process [i.e., AI is being used to drive innovation in other technologies],” USPTO said last week. “For example, at the AI/ET Partnership meetings, the USPTO heard that new AI models are being used in drug discovery, personalized medicine, and chip design.”

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“Some stakeholders have indicated that technologies using machine learning may be able to contribute at the level of a joint inventor in some inventions today,” it added. The agency also noted that in late 2022, Sens. Thom Tillis, R-N.C., and Chris Coons, D-Del., said a national commission should be established to consider whether patent law should be changed in order to “incentivize future AI-related innovations and creations.”

“If these technologies are in fact capable of significantly contributing to the creation of an invention, the question arises whether the current state of the law provides patent protection for these inventions,” USPTO said. The comments being sought by the agency, and the upcoming listening session, will help drive that discussion.

To jumpstart the talks, USPTO put forward a series of questions that will be discussed in May and in comments submitted over the next few weeks. One of those questions is whether any AI contributions so far are “significant enough to rise to the level of a joint inventor if they were contributed by a human?”

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It asked for legal assessments of whether an AI invention is patentable under current law, if there is a way to give appropriate credit AI systems even if they are not listed as an inventor, and how the law should be changed to accommodate AI.

USPTO also wants to know who would own a patented, AI-generated invention, how the agency might encourage more AI inventions, and what steps should be taken to mitigate potential harms from AI inventions.

The public listening session will be held on May 8 at Stanford University, from 10 a.m. to 3 p.m. PST.

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